Age-Based Restriction Under Surrogacy Law Is Scientifically Justified; Not Discriminatory: Kerala High Court

The Court was hearing a writ petition challenging the upper age limit prescribed for intending couples under Section 4(iii)(c)(I) of the Act on the ground that it violates Articles 14 and 21 of the Constitution.

A Bench of Justice M.B. Snehalatha observed: “Age-based classification is neither arbitrary nor discriminatory but rather scientifically justified. Article 14 of the Constitution of India permits classification if it is based on intelligible differentia and has a rational nexus with the objective”.

“The State is not merely a passive observer but has a positive obligation to safeguard the health of persons undergoing assisted reproduction procedures and the child born through such procedure”, the Bench added.

Advocates Sreekanth S. Nair & Deepa Sreenivasan represented the petitioners, K. Arjun Venugopal, CGC & P.M. Shameer, GP, appeared for the respondents.

Background

The petitioners, a married couple aged 44 and 57 respectively, approached the High Court seeking permission to proceed with surrogacy using cryopreserved embryos, contending that the upper age limit under the Act prevented them from doing so.

It was their case that despite being medically fit and having viable embryos, they were denied access to surrogacy solely on account of the age restriction, which was argued to be arbitrary and violative of their fundamental right to reproductive autonomy.

The petitioners further contended that reproductive choice forms part of personal liberty under Article 21, and that the restriction operated as an unreasonable barrier.

The Union of India, opposing the petition, contended that the age limits were introduced after extensive deliberation and expert consultation, and were necessary to safeguard the health of the surrogate mother and the child.

Court’s Observation

At the outset, the Court examined the challenge under Article 14 and reiterated that the Constitution permits reasonable classification if it is based on intelligible differentia and has a rational nexus with the object of the statute.

Applying this test, the Court held that the classification based on age is rooted in biological and medical considerations, observing that “fertility, pregnancy outcomes and risks associated with childbirth are directly linked to age.”

The Court further noted that the object of the Act is to ensure safe reproductive practices and to protect the interests of the surrogate mother as well as the child born through such procedures. It observed that “by prescribing age limits, the Act seeks to prevent high-risk pregnancies and ensure that reproductive technologies are not misused.”

Addressing the argument under Article 21, the Court acknowledged that reproductive autonomy forms part of personal liberty, but clarified that such rights are not absolute. It held that “the right to make decisions relating to reproduction… forms part of personal liberty… but the said rights are not absolute and are subject to reasonable restrictions imposed by the law.”

The Court emphasised the State’s role in regulating assisted reproductive technologies, observing that the State is not merely a passive observer but has a positive obligation to safeguard the health of persons undergoing assisted reproduction procedures and the child born through such procedures.

The Court further applied the doctrine of proportionality and held that the age restrictions satisfy the test, noting that “the age restrictions are suitable as they directly address medical and ethical concerns… and strike a careful balance between individual choice and public health.”

It was further observed that the regulatory framework aims to prevent misuse and ensure ethical practices, stating that “regulation of reproductive technology is not a denial of liberty, but a structured exercise of it.”

On the facts of the case, the Court noted that the embryos had been cryopreserved in 2023, i.e., after the enactment of the Act, and therefore the petitioners could not seek exemption based on the Supreme Court’s ruling in Vijaya Kumari S v. Union of India (2025), which applied only to cases where the surrogacy process had commenced before the Act.

Conclusion

The Court held that the age restrictions prescribed under the Surrogacy (Regulation) Act, 2021, are constitutionally valid, reasonable, and proportionate, having a direct nexus with the object of ensuring safe and ethical surrogacy practices.

Accordingly, the writ petition challenging the constitutional validity of the age limits was dismissed.

Cause Title: Sajithanand S @ Sajitha Manoharan & Anr. v. Union of India & Ors. (Neutral Citation: 2026:KER:32802)

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